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Guest editorial: Migratory birds face new threat

Ventura
Published 6:00 a.m. PT May 13, 2018

Interior Secretary Ryan Zinke, shown testifying on Capitol Hill, review the creation or expansion of national monuments of more than 100,000 acres since 1996 under an executive order signed by President Donald Trump.(Photo: AP PHOTO)

Passenger pigeons used to be so abundant in North America that migrating flocks blocked out the sun. At one time, the continent had an estimated 5 billion of the birds. But by the early part of the 20th century, the number was zero. Human predation had brought about their extinction.

In 1916, Canada and the United States tried to avert such outcomes by entering into the Migratory Bird Treaty. It had the goal of ensuring “the preservation of such migratory birds as are either useful to man or are harmless.” Two years later, Congress acted to enforce it with the Migratory Bird Treaty Act, making it illegal to “pursue, hunt, take, capture, kill, attempt to take, capture or kill” them “by any means whatever.” More than 1,000 species of birds are covered.

For decades, the Interior Department and U.S. Fish and Wildlife Service have used the law to protect migratory birds not only from hunting but also from industrial and agricultural activities that pose a serious hazard. They have balanced the need to produce oil and grow crops with the obligation to conserve avian wildlife.

The law comes into play most conspicuously after major oil spills. After the 2010 Deepwater Horizon blowout in the Gulf of Mexico, an estimated 1 million migratory birds died, and BP paid a fine of $100 million. The potential penalties are a strong incentive for businesses to take reasonable measures to avoid killing these birds.

But under Ryan Zinke, the Interior Department has announced a sharp change in how it interprets the law. It intends to excuse any bird deaths that result from accidents, no matter how large or preventable, and limit penalties to cases of deliberate killing. So if a company sprayed pesticides with the purpose of killing a lot of birds, it would be guilty. But if it sprayed the same pesticides to get rid of insects and killed a lot of birds in the process, it would be in the clear.

The department argues it’s unfair to punish as crimes actions that have no criminal intent. In theory, people could go to jail for harm to birds that they didn’t intend and couldn’t foresee.

But this is an instance where, as Justice Oliver Wendell Holmes put it, “a page of history is worth a volume of logic.” The law has been interpreted and applied with common sense, under the scrutiny of federal courts, and it has allowed private enterprise to operate without undue hassle.

Power lines, wind turbines, vehicles and skyscrapers kill millions of birds each year, and prosecutions are rare, because Fish and Wildlife understands most of the deaths are essentially unavoidable. Its object is to prevent those that can be prevented.

For example, birds can be attracted to oil waste pits, which resemble ponds, with fatal consequences. So companies are obligated to cover the sites with nets or put waste in closed containers, saving at least a half-million birds each year.

In January, 17 former high officials in the Interior Department and Fish and Wildlife signed a letter opposing the new policy. The treaty act “can and has been used to reduce gross negligence by companies that simply do not recognize the value of birds to society or the practical means to minimize harm,” they argue. “It has never been the goal to entirely eliminate the unintentional killing of birds, but when we find techniques and technologies that can be used at reasonable cost to protect bird populations, we had a responsibility to do so.”

That approach has saved migratory birds without curtailing oil and gas output, the proliferation of wind farms or the production of food. The new policy is a solution in search of a problem.